Thwarting equity

Jun. 29, 2007

1975 photo by Michael Coors Unconstitutional accomplishment

Throughout most of America's history, the law has been an instrument for thwarting rather than fostering the racial equality that so many citizens of good will have so bravely, so doggedly and so long sought.

And throughout that history, to its great and lasting shame, the U.S. Supreme Court has repeatedly affirmed that use.

Before the Civil War, it blocked congressional efforts to limit slavery's spread, and it denied citizenship even to freed slaves of African descent.

After that awful war and despite the passage of constitutional amendments to guarantee full civil rights regardless of race, the Court approved the pernicious Jim Crow laws by which states such as Kentucky deprived blacks of those very rights and denied to them, under the guise of "separate but equal" racial segregation, any semblance or hope of equity.

It is that tradition of progress thwarted and promise withdrawn to which the Court's new conservative majority returned yesterday, when it repudiated the last half-century of race-conscious efforts to overcome that tortured racial legacy.

Faced with a choice between continuing or ending Jefferson County's opportunity-enhancing, popularly supported and nationally acclaimed plan for keeping its once-segregated schools racially integrated and equitable, the Court chose, 5-to-4, to end it.

In doing so, the majority declared unconstitutional the very same race-conscious assignment practices that its civil-rights-minded predecessors had deemed constitutionally necessary.

It declared impermissible the very same achievement of integration that those earlier jurists had so wisely required, with such profoundly gratifying results for our society.

As a result, the near total racial isolation and educational despair that pervade so many American cities today are considered constitutionally just; the racial diversity and educational opportunity that Jefferson County has voluntarily and proudly attained are rejected as constitutionally unjust.

A more bitter or unjustified blow is hard to conceive.

The only thing worse would be for people of good will here to stagger under that blow and give up.

What we have gained for our children and for our community's social health is far too important to lose, and despite the callous, ideological lockstep of this decision, there remains a glimmer of hope.

The swing justice, Anthony Kennedy, didn't fully agree, and took pains to conclude his separate opinion with a hopeful, though vague, exhortation:

"The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic and economic backgrounds," he wrote.

School authorities may still "find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classification."

That is precisely the challenge that the school board, its new superintendent and federal District Court Judge John G. Heyburn must accept and meet.

Other means must be found to preserve both the diversity and choice that families of both races value so highly. Simply returning to segregated neighborhood schools would sacrifice far too much of both.

Judge Heyburn had ruled in favor of the plan, and his decision compellingly laid out its fairness, the profound public interest in promoting racially integrated education, and the legal folly of requiring schools to revive today the segregation they had to eliminate yesterday.

His wisdom, and the public's broad support for diverse schools, should encourage the board to reach rather than to retreat in deciding what to do.

As Justice Stephen Breyer wrote in yesterday's stirring minority dissent, "This is a decision the Court and the Nation will come to regret."